1. No party may assign as error the giving or failure to give an instruction unless the party
objects thereto before the jury retires to consider its verdict stating distinctly the matter to
which the party objects and the grounds of the objection unless the instruction or the
failure to give an instruction is clearly erroneous.

2. An instruction is clearly erroneous only if the reviewing court is firmly convinced that
there is a real possibility the jury would have rendered a different verdict had the jury been
properly instructed.

3. Where a party procures a court to proceed in a particular way and invites a particular
ruling, that party is precluded from assailing such proceeding and ruling on appellate
review.

4. K.S.A. 21-3808, Obstructing Legal Process or Official Duty, encompasses two different
possible scenarios--one in which an individual is obstructed in the service or execution of
process or order of a court, the other in which an officer is obstructed in the discharge of
any official duty.

5. Under the facts of this case, the officer's conduct was a direct and specific response to the
defendant's conduct. The claim that the officer's conduct was a superseding cause of the
battery was not supported by a showing that the officer's conduct was so unusual,
abnormal, or extraordinary that it could not have been foreseen by the defendant.

BUSER, J.: Deron McCoy, Jr., appeals his convictions for felony obstruction of official
duty and misdemeanor battery. He alleges that the elements instruction pertaining to obstruction
of official duty was clearly erroneous and that the evidence at trial was insufficient to convict him
of the two offenses. We affirm.

Factual and Procedural Background

This case arises out of a Hutchinson police investigation of a reported robbery. Deron
McCoy, Jr., was operating the suspect car in a restaurant drive-through lane when he was
confronted by police officer, Brice Burlie. McCoy maneuvered his car in such a way as to strike
another car and quickly drove away, slightly injuring Officer Burlie who had ahold of the car's
door handle.

McCoy was charged by amended information with one count of aggravated battery and
one count of obstruction of official duty. The obstruction count read that "[McCoy] did
unlawfully, feloniously, knowingly and intentionally obstruct, resist or oppose a person,
to-wit:
Officer Brice Burlie; authorized by law to serve process, then and there in the discharge
of an
official duty, to-wit: investigating a robbery."

Prior to trial, McCoy's counsel filed a motion in limine stating in part:

"It would be irrelevant and immaterial and highly prejudicial for it to be known to the jury
that
the officers were in the course of an investigation for Robbery and that Mr. McCoy was their
suspect. The State dismissed the Robbery charge against Mr. McCoy prior to the preliminary
hearing. The Defendant would be willing to stipulate that Officer Burlie was in the course of a
felony investigation."

At a hearing on the motion in limine, McCoy's counsel and the prosecutor announced a
stipulation which would allow police officers to testify they were looking for the car driven by
McCoy, but not to mention a robbery or that the car was considered stolen. A written stipulation
also provided:

"STIPULATION OF EVIDENCE REGARDING A FELONY
INVESTIGATION

The State of Kansas, by and through Assistant District Attorney, Terry Bruce, and the
Defendant,
by and through Assistant Regional Public Defender, Melissa French, stipulate on [sic]
the
following evidence: That on September 20, 2003, while at 201 East 44th Street, Hutchinson,
Reno County, Kansas, Officer Brice Burlie was discharged [sic] with the official duty
of
investigating a felony."

At trial, the written stipulation was admitted into evidence. In his testimony, Officer Burlie
also
stated he was investigating a felony at the time he approached McCoy.

Evidence at trial indicated that Officer Burlie was on routine patrol in Hutchinson when he
observed a vehicle driven by McCoy that matched the description of the suspect vehicle. Officer
Burlie recognized McCoy from two prior encounters at the Hutchinson Community College
dormitories. McCoy's car was moving forward in the Burger King drive-through lane. Officer
Burlie positioned his patrol vehicle behind McCoy's vehicle, whereupon he observed the car's
parking or reverse lights activated. Officer Burlie stepped out of his patrol car, approached, and
stood directly in front of the driver's side window, about a foot from McCoy.

At that time, Officer Burlie was wearing a police uniform with identifiable patches, walkie
talkie, gun, and holster. He instructed McCoy to place the vehicle in park, put his hand on the
steering wheel, and "don't move." McCoy responded by asking Officer Burlie, "What is the
problem?" Officer Burlie replied, "[J]ust go ahead and place the vehicle into park; put your hand
up on steering wheel. I'll explain to you what the problem is." Contrary to Officer Burlie's
instructions, McCoy put the car in drive and accelerated forward, striking the vehicle ahead of it.
Officer Burlie attempted to open the driver's side door to grab McCoy. Officer Burlie testified to
the events which followed:

"As he struck the Ford Explorer, I was trying to pull up on the door handle
realizing
when striking the Ford Explorer he was pushing it, he still gave it gas to move it out of the way
where he was able to pull off away from the vehicle, get around it so he could leave the scene.
During that time my ring was stuck on [the door handle], pulling me forward along the same
path that it was scraping up against the Ford Explorer--thinking it was going to drag me into it,
too. It gave me a good jerk. Probably pulled me about two feet, and then I was able to pull my
hand away from the door handle."

Officer Burlie testified that, as a result of this encounter, his finger had a "chunk" of skin torn
away.

Prior to trial, McCoy's counsel filed proposed jury instructions with the court. The
defendant's proposed elements instruction for obstruction of official duty read:

"The defendant is charged with the crime of obstructing official duty. The defendant
pleads not
guilty.

To establish this charge, each of the following claims must be proved:

1. That Officer Burlie was authorized by law to serve process;

2. That the defendant knowingly and willfully obstructed Officer Burlie in the investigation
of a
felony;

3. That the act of the defendant substantially hindered or increased the burden of the
officer in
the performance of the officer's official duty;

4. That at the time the defendant knew or should have known that Officer Burlie was a
law
enforcement officer; and

5. That this act occurred on or about the 20th day of September, 2002, in Reno County,
Kansas."

The trial court's instruction number 11 was identical to the elements instruction for
obstruction of official duty proposed by McCoy's counsel with only one exception. Defense
counsel's proposed instruction used the word "obstructed," while the court's instruction used the
word "resisted" in setting forth the second element of the offense. There was no objection from
either counsel at the instructions conference, and instruction number 11 was read to the
jury--essentially as submitted by defense counsel.

The jury returned convictions for felonious obstruction of official duty and the lesser
included offense of battery.

Obstruction of Official Duty Instruction

McCoy claims that instruction 11 setting forth the elements of the crime of obstruction of
official duty was clearly erroneous. In particular, McCoy states that the first element of this
instruction, "That Officer Burlie was authorized by law to serve process"; is improperly taken
from PIK Crim. 3d 60.08 (Obstructing Legal Process), while the remaining four elements of this
instruction are derived from PIK Crim. 3d 60.09 (Obstructing Official Duty). As a result, McCoy
argues that this first element "has no relevance to this case [and] . . . was unsupported by the
evidence and misleading to the jury." He also observes that the first element of PIK Crim. 3d
60.09 (Obstructing Official Duty) instruction, was not given to the jury for its consideration and
verdict. McCoy concludes: "Thus, the jury was not instructed on every essential element of the
crime of obstructing official duty."

The State contends that instruction 11 is identical to the instruction submitted by the
defense, the defendant's proffered instruction cited "PIK Crim. 3d 60.09" (Obstructing Official
Duty) as authority for the instruction, the defense did not object to the submission of this
instruction, and the totality of the instruction correctly allowed the jury to consider the essential
elements of obstruction of official duty.

The State and McCoy agree that this court should apply the clearly erroneous standard of
review because McCoy did not object to instruction number 11. See State v. Pabst,
273 Kan. 658,
660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). K.S.A. 2004 Supp. 22-3414(3)
provides:

"No party may assign as error the giving or failure to give an
instruction . . . unless the
party objects thereto before the jury retires to consider its verdict stating distinctly the matter to
which the party objects and the grounds of the objection unless the instruction or the failure to
give an instruction is clearly erroneous."

See State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001). "An instruction is
clearly erroneous
only if the reviewing court is firmly convinced that there is a real possibility the jury would have
rendered a different verdict had the jury been properly instructed." State v. Graham,
275 Kan.
831, 833, 69 P.3d 563 (2003).

Of particular importance to this claim of error is the fact that McCoy not only failed to
object, his counsel proposed the very language that, on appeal, McCoy now claims was clearly
erroneous. As a result, McCoy invited the error, which precludes him from complaining about it
on appeal. See State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982)
("Where a party
procures a court to proceed in a particular way and invites a particular ruling, he is precluded
from assailing such proceeding and ruling on appellate review."); State v. Kleypas,
272 Kan. 894,
1080, 40 P.3d 139 (2001) (error in omitting instruction invited where defendant opposed the
instruction); State v. Fulton, 269 Kan. 835, 846, 9 P.3d 18 (2000) ("jury instruction
requested by
defense counsel improperly complained of on appeal"); Borman, 264 Kan. 476, 480,
956 P.2d
1325 (1998). ("Borman is in no position to argue that the trial court erred in providing the first
sentence of the diminished capacity instruction because this sentence was almost identical to the
diminished capacity instruction which Borman requested.").

The application of the invited error doctrine to jury instructions is widely recognized. See
Maiz v. Virani, 253 F.3d 641, 677 (11th Cir. 2001) (an erroneous instruction is not
plain error if
the defendant requested the instruction); Parker v. Champion, 148 F.3d 1219, 1222
(10th Cir.
1998) (the giving of a requested instruction precludes reversal of conviction and any habeas relief
even if trial court erred in giving the instruction); United States v. Baytank(Houston), Inc., 934
F.2d 599, 607 (5th Cir. 1991) (invited error doctrine is applicable to an instruction which results
in conviction for a crime not charged in the indictment).

Our consideration of the merits of McCoy's claim assures us that, even if McCoy's claim
were not barred from appellate consideration, it is without merit. The elements of obstruction are
found in K.S.A. 21-3808. See State v. Shirley, 277 Kan. 659, 662, 89 P.3d 649
(2004) (elements
are taken from the statute). K.S.A. 21-3808 states in part:

"Obstructing legal process or official duty is knowingly and intentionally obstructing,
resisting or
opposing any person authorized by law to serve process in the service or execution or in the
attempt to serve or execute any writ, warrant, process or order of the court, or in the discharge of
any official duty."

To prove obstruction of official duty, then,

"the State was required to prove that an identified law enforcement officer was carrying
out some
official duty, and that each defendant knowingly and willfully obstructed or opposed that officer
in the performance of that duty. The State was also required to show that each defendant knew or
should have known that the person he opposed was a law enforcement officer. [Citation
omitted.]" State v. Parker, 236 Kan. 353, 364-65, 690 P.2d 1353 (1984).

As stated in State v. Timley, 25 Kan. App. 2d 779, 785, 975 P.2d 264 (1998),
rev. denied 266
Kan. 1115 (1999), "The statute thus encompasses two different possible scenarios--one in which
an individual is obstructed in the service or execution of process or order of a court, the other in
which an officer is obstructed in the discharge of any official duty."

The same distinction was present in G.S. 1949, 21-717, which K.S.A. 21-3808 "follows . .
. in all substantive respects." State v. Lee, 242 Kan. 38, 40, 744 P.2d 845 (1987). The
former
statute established obstruction "[i]f any person or persons shall knowingly and willfully obstruct,
resist or oppose any sheriff or other ministerial officer in the service or execution or in the attempt
to serve or execute any writ, warrant or process, or in the discharge of any official
duty . . . ."
G.S. 1949, 21-717.

At the outset, the instruction submitted to the jury did contain surplusage. In particular, it
directed the jury to determine if Officer Burlie was "authorized by law to serve process." This
particular element is essential to the offense of obstruction of legal process, but not essential to
the offense of obstruction of legal duty. K.S.A. 21-3808. PIK Crim. 3d 60.09 makes this clear by
setting forth the first element of obstruction of legal duty: "That _________ was authorized by
law to __________." In the "Notes on Use" the PIK committee states: "In the second blank of
Element No. 1, the Court should insert the act or acts the person named in the first blank was
authorized to perform." This instruction does not mention the necessity of proving an officer was
authorized to serve process, but it does require the State to prove that Officer Burlie was
authorized to perform some official duty. Thus, the first element of instruction 11 was erroneously
given, but it was not an essential element to prove the particular charge against McCoy.

The jury was not instructed according to the form of the first element of PIK Crim. 3d
60.09. We are convinced, however, that the jury did consider and determine the substance of the
first element of that instruction--that Officer Burlie was engaged in an official duty at the time of
his encounter with McCoy. Two factors dictate this conclusion. First, the parties submitted a
written stipulation of evidence that "Officer Burlie was discharged with the official duty of
investigating a felony." Second, the third element of instruction 11 required the jury to determine
"[t]hat the act of the defendant substantially hindered or increased the burden of the officer
in the
performance of the officer's official duty." (Emphasis added.) As a result, the jury was
appropriately instructed to determine beyond a reasonable doubt that Officer Burlie was engaged
in an official duty, to-wit: investigating a felony at the time of the incident.

Finally, defense counsel conceded during closing argument that the defense was not
contesting that Officer Burlie was engaged in the performance of his duties at the time of his
encounter with McCoy. McCoy's counsel stated in part:

"In regards to the obstruction charge first, remember the obstruction is of Officer Burlie in
the
Burger King drive-thru . . . . Okay. One of the things you are going to get is a statement. We
agree that Officer Burlie was in the course of the investigation of a felony, and that's one of the
important parts that you have in your instructions. Okay. We don't disagree with that. What we
disagree with is there was any type of obstruction."

A fair reading of the record reveals that not only was the jury appropriately instructed in the
necessity of finding Officer Burlie was engaged in the performance of his duty, but this fact was
not essential to McCoy's defense. Having considered the merits of McCoy's claim we are not
"firmly convinced that there is a real possibility the jury would have rendered a different verdict,"
State v. Graham, 275 Kan. at 833, had the jury been instructed using the exact
verbiage of PIK
Crim. 3d 60.09.

Sufficiency of Evidence of Obstruction of Official Duty

McCoy complains that there was insufficient evidence to convict him of obstruction of
official duty. In reviewing this claim, we review all of the evidence viewed in a light most
favorable to the State. The question is whether a rational jury could have found the defendant
guilty beyond a reasonable doubt. State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208
(2004).

In particular, McCoy argues that there was no evidence which established Officer Burlie
was authorized by law to serve process. We agree. However, as discussed previously, McCoy
was charged with obstructing official duty, not obstructing legal process. See K.S.A.
21-3808(a)
("[o]bstructing legal process or official duty [Emphasis added.])" Any allegation that
Officer
Burlie was authorized to serve process or any jury instruction requiring such a finding was
surplusage and not necessary to McCoy's conviction for obstruction of official duty.

The evidence at trial showed that Officer Burlie was a uniformed, clearly identified law
enforcement officer engaged in his official duty of attempting to stop and investigate McCoy for a
felony offense. In willful disregard of Officer Burlie's order to place the vehicle in park, put his
hand on the steering wheel, and "don't move," McCoy placed the vehicle in drive and drove off
with Officer Burlie's hand on the door handle. These facts obviously support McCoy's conviction.
A rational jury could have concluded from this evidence that McCoy knowingly and willfully
obstructed or opposed a law enforcement officer in the performance of an official duty. See
State
v. Gasser, 223 Kan. 24, 30, 574 P.2d 146 (1977) ("breaking . . . and running" from an
officer
attempting to effect arrest "was conduct unlawful under K.S.A. 21-3808").

Sufficiency of Evidence of Battery

McCoy maintains the evidence was insufficient to prove beyond a reasonable doubt either
that his conduct was reckless or that it caused the injury to Officer Burlie. McCoy does not
dispute the definition of reckless conduct given to the jury, which required it to find "conduct
done under circumstances that show a realization of the imminence of danger to the person of
another and a conscious and unjustifiable disregard of that danger."

It should be obvious that a rational jury could find McCoy's conduct reckless beyond a
reasonable doubt. Using the car as a ram, McCoy struck another vehicle and accelerated from a
narrow lane with Officer Burlie in close proximity and hemmed in by a building. This combination
of McCoy's evasive driving, which caused a vehicular accident, in close quarters with Officer
Burlie in the immediate vicinity provides a rational basis to find McCoy created an imminent
danger to Officer Burlie and showed a conscious and unjustifiable disregard of that danger.

McCoy next contends there was no evidence to show his awareness that Burlie had
grabbed the door handle. At the outset, the State was not obliged to prove McCoy's precise state
of mind at the time he decided to flee from Officer Burlie. See State v. Spicer, 30
Kan. App. 2d
317, 324, 42 P.3d 742, rev. denied 274 Kan. 1117 (2002) (the recklessness element
does not
transform battery into a specific intent crime). Recklessness is shown where a person takes "an
unjustifiable risk which results in a harmful touching to the person of another."
(Emphasis added.)
Spicer, 30 Kan. App. 2d at 324. Thus, recklessness may be present even where a
defendant has
not foreseen the specific injury which will occur. See State v. Davidson, 267 Kan.
667, 682-84,
987 P.2d 335 (1999) (construing reckless second-degree murder).

Finally, McCoy argues that he did not cause Officer Burlie's injury because "it was Officer
Burlie's actions that created the contact with [McCoy's] car." The State responds that "if [McCoy]
had obeyed Officer Burlie's commands from the get-go, then Officer Burlie would not have been
reaching for the door handle of the vehicle."

McCoy is essentially arguing that Officer Burlie's decision to grab the door handle was an
intervening, superseding cause of his injury. This area of the law was discussed in State v.
Anderson, 270 Kan. 68, 69, Syl. ¶ 6, 12 P.3d 883 (2000), where our Supreme Court
stated:

"In an action for injuries suffered in a accident resulting from a police pursuit, the issue of
foreseeability with respect to defendant focuses upon his point of view, that is, whether the harm
that occurred was a reasonably foreseeable consequence of the defendant's conduct at the time he
or she acted. Since the officer's conduct was a direct and specific response to defendant's conduct,
the claim that the officer's conduct was a superseding cause of the accident can be supported only
through a showing that the officer's conduct was so unusual, abnormal, or extraordinary that it
could not have been foreseen."

Here, McCoy maintains he "had no control over Officer Burlie's decision and, in fact,
could not have stopped him from causing this contact from inside the car." As
Anderson provides,
the issue is whether McCoy's conduct reasonably caused Officer Burlie's conduct, not whether
McCoy could have somehow prevented this injury. Since it is not unusual, abnormal, or
extraordinary that a police officer would attempt to open a car door to apprehend a suspect who
is attempting to flee a felony investigation--especially when the car is stopped and apparently
blocked in--the jury could properly conclude it was McCoy, not Officer Burlie, who proximately
caused the injury. See Anderson, 270 Kan. at 73 (characterizing the analysis as
"proximate cause
in a criminal context"). We conclude a rational jury could have found the defendant guilty of
battery beyond a reasonable doubt.